India Coffee Board Workers Co-operative Society Ltd. No.4227, Thrissur v. State of Kerala, Kerala Co-operative Tribunal, General Manager, District Industries Centre, Registrar of Industrial Co-operative Societies, Thrissur, and P.P. Mohanan Pillai

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 29TH DAY OF JANUARY 2018 / 9TH MAGHA, 1939** **WP(C).No. 9431 of 2015** ## **PETITIONER(S):** **INDIA COFFEE BOARD WORKERS CO-OPERATIVE SOCIETY LTD. NO.4227, THRISSUR, P.B.O.184, PIN-680 001. REP.BY ITS SECRETARY SURESH, S/O.DAMODARAN.** - **BY ADVS. SRI.V.RAJENDRAN (PERUMBAVOOR)** - **SRI.GEORGE VARGHESE KIZHAKKAMBALAM** ## **RESPONDENT(S):** **1. STATE OF KERALA, REP.BY PRINCIPAL SECRETARY, DEPARTMENT OF CO-OPERATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. KERALA CO-OPERATIVE TRIBUNAL, THIRUVANANTHAPURAM 695 001,** - **REP.BY SECRETARY.** **3. GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,** - **AYYANTHOLE THRISSUR-680 003.** - **REGISTRAR OF INDUSTRIAL CO-OPERATIVE SOCIETIES THRISSUR.** **4. P.P.MOHANAN PILLAI, AGED 52, S/O.PARAMESWARAN PILLAI, VADAKKEMANANCHERIL HOUSE,** **KARGIL JUNCTION, PALLIPPURAM P.O.-688 541, CHERTHALA, ALAPPUZHA DISTRICT.** **R1 TO R3 BY SR.GOVERNMENT PLEADER SRI.E.S.ASHRAF R4 BY ADVS. SMT.TESMY VARGHEESE** **SRI.DILEEP VARGHESE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-12-2017, ALONG WITH W.P.(C)NO. 9432 OF 2015, THE COURT ON 29-01-2018 DELIVERED THE FOLLOWING:** **Msd.** **WP(C).No. 9431 of 2015 (D)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **EXT.P1: TRUE COPY OF RESOLUTION TAKEN BY THE PETITIONER SOCIETY ON 19.08.2006.** - **EXT.P2: TRUE COPY OF NOTICE PUBLISHED IN DESABHIMANI DAILY DATED 25.2.08. EXT.P3: TRUE COPY OF TERMINATION ORDER ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT ON 05.04.2008.** - **EXT.P4: TRUE COPY OF NOTICE ISSUED TO THE 4TH RESPONDENT REMOVING HIM FROM THE MEMBERSHIP OF THE SOCIETY.** - **EXT.P5: TRUE COPY OF PETITION FILED BY THE 4TH RESPONDENT BEFORE THE ARBITRATION COURT(NORTHERN) KOZHIKKODE ON 06.03.2012 AS A.R.C 6/12.** |**EXT.P6:**|**TRUE COPY OF WRITTEN STATEMENT FILED BY THE SECRETARY OF**| |---|---| ||**PETITIONER SOCIETY IN ARC.6/12 ON 21.07.2012.**| |**EXT.P7:**|**TRUE COPY OF ORDER OF ARBITRATION COURT IN A.R.C 6/12**| ||**DATED 30.01.2014.**| |**EXT.P8:**|**TRUE COPY OF JUDGMENT OF 2ND RESPONDENT IN APPEAL NO.43/14**| ||**DATED 16.12.2014.**| |**EXT.P9:**|**TRUE COPY OF REPORT SUBMITTED BY MANAGER CHERTHALA BRANCH OF**| ||**COFFEE HOUSE TO THE SECRETARY OF THE PETITIONER ON 11.02.2003.**| |**EXT.P10:**|**TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE 4TH RESPONDENT BY**| ||**SECRETARY OF THE PETITIONER ON 22.02.2003.**| |**EXT.P11:**|**TRUE COPY OF EXPLANATION SUBMITTED BY 4TH RESPONDENT TO**| ||**EXHIBIT P10 BEFORE THE SECRETARY ON 06.03.2003.**| |**EXT.P12:**|**TRUE COPY OF LETTER SENT BY PRESIDENT OF THE SOCIETY TO**| ||**THE 4TH RESPONDENT ON 07.03.2003.**| |**EXT.P13:**|**TRUE COPY OF REPORT SUBMITTED BY MANAGER OF CHERTHALA BRANCH OF**| ||**COFFEE HOUSE TO THE SECRETARY ON 23.08.2004.**| |**EXT.P14:**|**TRUE COPY OF EXPLANATION SUBMITTED BY 4TH RESPONDENT TO**| ||**THE SECRETARY OF THE SOCIETY ON 05.11.2004.**| |**EXT.P15:**|**TRUE COPY OF RECOMMENDATION OF CHERTHALA BRANCH MANAGER**| ||**DATED NIL.**| |**EXT.P16:**|**TRUE COPY OF SHOW CAUSE NOTICE ISSUED TO THE 4TH RESPONDENT BY**| ||**THE SECRETARY OF THE SOCIETY ON 11.02.2005.**| |**EXT.P17:**|**TRUE COPY OF REPLY SUBMITTED BY 4TH RESPONDENT TO EXHIBIT P16**| ||**ON 21.03.2005.**| ## **WP(C).No. 9431 of 2015 (D)** - **EXT.P18: TRUE COPY OF PETITION FILED BY 4TH RESPONDENT BEFORE THE SECRETARY OF THE PETITIONER SOCIETY ON 22.03.2005.** - **EXT.P19: TRUE COPY OF NOTICE ISSUED BY SECRETARY OF THE SOCIETY TO THE 4TH RESPONDENT ON 11.04.2005.** - **EXT.P20: TRUE COPY OF REPORT SUBMITTED BY ERATTUPETTA BRANCH MANAGER OF COFFEE HOUSE BEFORE THE SECRETARY ON 22.06.2006.** - **EXT.P21: TRUE COPY OF NOTICE ISSUED BY SECRETARY OF THE PETITIONER SOCIETY TO THE 4TH RESPONDENT ON 03.07.2006.** - **EXT.P22: TRUE COPY OF REPORT SUBMITTED BY MANAGER OF ERATTUPETTA BRANCH OF COFFEE HOUSE TO THE SECRETARY OF THE PETITIONER SOCIETY ON 07.07.2006.** - **EXT.P23: TRUE COPY OF REPORT SUBMITTED BY MANAGER OF CHENGANASSERY BRANCH OF COFFEE HOUSE TO THE SECRETARY OF THE PETITIONER SOCIETY ON 17.07.2006.** - **EXT.P24: TRUE COPY OF SOW CAUSE NOTICE ISSUED BY SECRETARY OF THE PETITIONER SOCIETY TO THE 4TH RESPONDENT ON 20.07.2006.** - **EXT.P25: TRUE COPY OF LETTER SENT BY 4TH RESPONDENT TO THE SECRETARY OF THE SOCIETY ON 26.07.2006.** - **EXT.P26: TRUE COPY OF NOTICE ISSUED BY SPECIAL DEPUTY TAHSILDAR (RR) TO THE PETITIONER SOCIETY BEARING NO.RR/2632 AND 2994 DATED 06.03.2007.** - **EXT.P27: TRUE COPY OF REPLY SENT TO EXHIBIT P26 BY THE PETITIONER SOCIETY ON 10.03.2007.** ## **RESPONDENT(S)' EXHIBITS :** **EXHIBIT R4(A): LETTER ISSUED BY THE PETITIONER TO THE 4TH RESPONDENT DATED 06.05.2015.** **EXHIBIT R4(B): WAGE SLIP OF THE 4TH RESPONDENT FOR THE PERIOD 01.05.2015 TO 30.05.2015 DATED NIL.** **EXHIBIT R4(C): WAGE SLIP OF MR.SREEKUMAR P.K FOR THE PERIOD 01.05.2015 TO 30.05.2015 DATED NIL.** **//TRUE COPY//** **P.S.TO JUDGE** **Msd.** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).Nos. 9431 & 9432 of 2015 ----------------------------------------------Dated this the 29[th] day of January, 2018** ## **JUDGMENT** The surviving challenge in these writ petitions is with regard to the direction issued by the Co-operative Tribunal to reinstate the employees who are arrayed as respondent No.4 in both these writ petitions in service with full back wages. It is stated that the employees in question had entered service on 1.1.1992 and 8.3.1996 respectively. They were dismissed from service by resolution dated 19.6.2006 and 22.6.2008 respectively. The employees had filed ARC.Nos.6 of 2012 and 184 of 2011 before the Co-operative Arbitration Court. The petitioner Society entered appearance and filed written statement. It was contended that the employees had abandoned their employment. By Exhibit P7 award, the punishment of removal of the employees was set aside and the penalty was converted as compulsory retirement. The employees had preferred appeals from the award. By Exhibit P8 judgment, the appellate tribunal set aside the decision of the petitioner Society dismissing the employees and the decision removing the employees from the membership of the Society. _**WP(C).9431 & 9432/15**_ 2 The petitioner was directed to reinstate the employees in service with continuity of service from 22.6.2006 and to grant full back wages from 22.6.2006 till the date of reinstatement. It is submitted by learned counsel for the petitioner that the employees had been reinstated and had also been granted the continuity of service. 2. The only question which survives for consideration therefore is with regard to the direction to grant back wages from 22.6.2006. It is submitted by learned counsel for the petitioner that the petitioner is an Employees Co-operative Society and the employees themselves are the members of the Society and the Managing Committee is elected from among the members themselves. It is stated that the 4[th] respondent in W.P(C).No.9431 of 2015 was a general worker who was working as a pantry man in the Erattupetta Branch of the Indian Coffee House. While so, he was transferred to the Changancherry Branch. He obtained the last pay certificate from the Erattupetta Branch but thereafter, did not join duty and abandoned the job. It is therefore contended that the issue of grant of back wages is one to be addressed with more care and caution than in a normal case, since the present controversy is with regard to reinstatement in a Co-operative Society 3 _**WP(C).9431 & 9432/15**_ comprised of employees themselves and the financial situation of the Society should also be taken into account while considering the question of full back wages. It is contended that the dispute was raised at an extremely belated stage and that the finding of the Co-operative Arbitration Court was only that the employees were entitled for conversion of the termination ordered to one of compulsory retirement. It is only by Exhibit P8 proceedings that reinstatement had been ordered with full back wages. It is stated that the finding contained in Exhibit P8 to the effect that the imposition of punishment of termination of service without constituting a sub committee as provided in Rule 198 of the Kerala Co-operative Societies Rules, 1969 (for short, 'the Rules') is completely misconceived, since Rule 198 was amended only in 2012 and till such time, there was no requirement for constitution of the sub committee. It is contended that the Executive Committee itself was competent to award punishment of termination of service as has been done in the instant case. It is further contended that the Apex Court in a series of decisions has cautioned against the grant of back wages as a matter of course and it is contended that the issue of back wages ought to have been decided taking note of the contentions raised by the petitioner also. 4 _**WP(C).9431 & 9432/15**_ 3. The learned counsel appearing for the respondents, on the other hand, submit that it is trite law that dismissal of an employee without conducting any enquiry is a nullity in the eye of law. It is stated that if the management had a case that the disciplinary action initiated against the employees was justified in the facts of the case, it was for the management to have sought to adduce evidence before the Tribunal in support of the charges levelled against the employees. The Tribunal having found that the termination of service of the employees was bad in law was not duty bound to have called upon the management to adduce evidence in support of the charges. It was for the Management to have sought such an opportunity if it was of the opinion that the charges could be sustained before the Tribunal. It is stated that the employees who had gone to the place to which he had been transferred to rejoin duty were prevented from doing so. Thereafter, being members of the Society they had made several attempts for an amicable settlement of the issue and it was only when all such attempts failed that they were constrained to approach the Co-operative Arbitration Court by filing ARC. It is submitted that these aspects had been explained in the petitions preferred by them before the Arbitration Court and had been substantiated before _**WP(C).9431 & 9432/15**_ 5 the Tribunal. It is further contended that going by the decisions of the Apex Court in _**Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyalaya**_ [(2013) 10 SCC 324] as well as of this Court in _**Govindan Unnithan v. Industrial Tribunal**_ [1981 KLT 342], termination from service without an enquiry would be a nullity in the eye of law and where there is a finding that such termination is a nullity, there is no requirement for giving an opportunity to the employer to substantiate its charges against the delinquent employee. 4. I have considered the contentions advanced. The employees had been terminated from service from August, 2006. They had approached the Arbitration Court in 2011 and 2012 respectively. The Arbitration Court had considered the contentions raised on either side and found that the order of transfer had not been directly served on the employees by the Society. It was found that the transfer order was only issued orally. The punishment of termination of service was therefore set aside and the punishment was modified as compulsory retirement. The employees took up the matter in appeal. The contentions raised on either side was considered in detail. It was found that no charges were levelled against the employees in writing and no opportunity had been given to explain their _**WP(C).9431 & 9432/15**_ 6 conduct. It is stated that the oral evidence of PW1 and Exhibits A1 to A13 were relied upon by the appellant to prove that the employees had been terminated from service on account of rivalry. It is stated that the documents relied upon by the Society was not proved by them. It is stated that the Manager of the petitioner at Erattupetta Branch was not examined and no satisfactory explanation was forthcoming for his non examination. Taking note of the entire documents produced and the oral evidence, the Tribunal came to the conclusion that the provisions of Rule 198(2) of the Rules were not complied with before the employees had been terminated. It is stated that the procedure for conduct of enquiry was not complied with and the decision to impose the punishment had been entered into without any enquiry worth its name. The Tribunal therefore found that there was denial of natural justice and that the order of termination was per se illegal. The petitioner was therefore directed to reinstate the employees with continuity of service from 22.6.2006 and directed grant of full back wages from 22.6.2006. 5. It is submitted by learned counsel for the petitioner that A.R.C.No.6 of 2012 had been preferred only in the year 2012 and A.R.C.No.184 of 2011 was filed in 2011. The _**WP(C).9431 & 9432/15**_ 7 petitioners have pointed out reasons for the delay in approaching the Arbitration Court. The Tribunal has considered the contentions raised to the effect that the orders of termination were not preceded by any enquiry and were therefore legal and sustainable. However, the specific issue of delay in approaching the Arbitration Court has not been considered by the Tribunal in Exhibit P8. The contentions raised by learned counsel for the petitioner against Exhibit P8 to the extent that the finding in the said order to the effect that the disciplinary proceedings are vitiated for want of consideration by sub committee and that such sub committee need not have been constituted before 2012 are unsustainable, according to me. The finding in Exhibit P8, if any, as to the formation of a sub committee and consideration of the case by such sub committee was only incidental. The finding in Exhibit P8 is clearly to the effect that there were no written charges and absolutely no enquiry preceded the termination of the employees. 6. Rule 198(2) of the Kerala Co-operative Societies Rules reads as follows: ## _“_ _**198. Disciplinary Action:-** (1) x x x_ ## _(2) No kind of punishment shall be awarded to_ 8 _**WP(C).9431 & 9432/15**_ _an employee unless he has been informed in writing of the grounds on which it is proposed to take action against and he has been afforded an opportunity including a personal hearing to defend himself. Every order awarding punishment shall be communicated to the employee concerned in writing stating the grounds on which the punishment has been awarded.”_ Sub-rule (3) of Rule 198 specifically provided that the authority competent to impose penalties under (d) to (h) of Rule 198 on employees holding posts higher than that of Senior Clerk/Senior Assistant/1[st] Grade Assistant or equivalent posts would be the sub committee/executive committee and in the case of all other employees would be the President. 7. It is not in dispute before me that employees had ever been put on notice of the charges against them. It is also not disputed that no enquiry as contemplated under Rule 198 of the Rules had ever been held against the respondents. In the above view of the matter, I find no error in the finding of the Tribunal that the orders of termination were illegal and unsustainable. However, with regard to the question of back wages, since the employees had already been reinstated in service with continuity of service from 22.6.2006 as directed by the Tribunal, on a consideration of the contentions raised by 9 _**WP(C).9431 & 9432/15**_ the petitioner in the writ petitions, I am of the opinion that back wages have to be limited from the date of preferring of the arbitration cases by the employees in the respective cases. In the above view of the matter, the findings in Exhibit P8 as to the illegality of the orders of termination are sustained. However, the back wages due to the employees will be limited to the date on which they preferred the ARCs before the Arbitration Court. The writ petitions are ordered accordingly. **ANU SIVARAMAN JUDGE** _vgs_